Cohen v. Continental Fire Insurance Company. premium note. It was to continue for five years and was dated March 12, 1883. A cash premium of $8 was paid upon delivery of the policy and a premium note for $32 executed, payable in installments of $8 each on the 1st day of March of the years 1884, 1885, 1886 and 1887 respectively. The first installment was not paid, and on the ninth of November next after it matured, the property insured was destroyed by fire. In order to arrive at the effect of the provision for a forfeiture of the policy, plaintiffs proved that after the installment fell due, one Bridges, an agent of the company, frequently made demand for the premium upon blanks of the company issued for that purpose; that on one occasion he added "unless you pay now you will be without insurance," and that about the middle of October he sent another demand, and wrote that if the premium was not paid by the twenty-fifth of that month it would be collected by an attorney or through the bank. Plaintiffs were ready and willing to pay the note, had it been presented by a bank or an attorney. Bridges was agent of the company to solicit applications and to receive and transmit premiums; but Dargan & Trezevant were the company's superintendent for the south-western department, and as such issued policies applied for, as they saw fit. There can be no doubt that an insurance company, through its authorized agent, may contract by parol for the renewal of a policy, although it may be stipulated on the face of the instrument itself that this shall not be done. There is no peculiar sanctity attached to such provision in contracts of this character which makes them an exception to the general rule that parties to an agreement may, by mutual concurrence, change its terms at any time after its execution so as to meet their pleasure or interest. A contract of insurance may be by parol, and its terms may be changed by parol, by mutual assent. It has accordingly been held, in numerous decisions, that though a policy be forfeited by the failure to pay the premiums according to its conditions, yet an agent, duly authorized, may waive the forfeiture, and thereby reinstate the obligation. The cases go even further, and decide that the authority of the agent may be implied from a previous waiver of a former forfeiture of the same policy, or from a general custom of such agent to exercise such power over the contracts of the company. Ins. Co. v. Norton, 96 U. S. 234; Chicago Life Ins. Co. v. Warner, 80 Ill. 410; VOL. LX-4 Cohen v. Continental Fire Insurance Company. Homes v. Phila. Life Ins. Co., 61 Penn. St. 107; Bowman v. Ins. Co., 59 N. Y. 521; Westchester Fire Ins. Co. v. Earle, 33 Mich. 143; Trustees, etc., v. Brooklyn Fire Ins. Co., 19 N. Y. 305. It may also be considered as settled law that when a policy provides for a forfeiture upon failure to pay premiums which are to fall due, but does not stipulate that upon such failure the overdue premiums shall be considered as earned, a demand and payment of such premium constitutes a waiver of the forfeiture. Joliffe v. Madison Mutual Ins. Co., 39 Wis. 111. This is upon the principle, that in such case, the insurance and the premium are obligations which depend each upon the other, and hence that a receipt of the latter necessarily implies that the insurer recognizes or renews the original contract, and thereby assumes the continuance of the risk. It is manifestly just that if he takes payment of the premium, which is but the consideration of a contract of insurance on his part, he should be held responsible for the loss if any occurs. Such is not the case, however, when the contract is that upon the default in any installment, the insurance shall cease and the installment shall be considered as earned. Then the insurer has the right to the premium although the insurance is forfeited, and hence a demand and payment of the premium is not held as a waiver. Gorton v. Dodge County, etc., Ins. Co., 39 Wis. 121. We have found no case which goes to the extent of holding that merely a demand of the payment of the overdue premium, without its payment, is sufficient to reinstate a policy which is forfeited. Such is however the contention of appellants in the case before us. We will briefly notice some of the cases which have been cited in support of that position: Insurance Company v. Norton, 96 U. S. 234, was a suit by appellee upon a life insurance policy on the life of her husband. There was a default on the last premium which fell due before the death of the assured; but her case was, that after it had matured, and before the death, an agreement had been entered into between the agent of the company and the assured, that the time of payment should be extended, and that before the extension had expired the premium had been tendered. It was proved on behalf of appellee, that the agent who made the transaction had been accustomed to take notes and extend the time of payment, and that the company had ratified his acts. The majority of the court held, that these facts were sufficient to reinstate the Cohen v. Continental Fire Insurance Company. policy and that there was sufficient evidence of them to go to the jury and to warrant their finding. Three of the judges dissented. In the Chicago Life Ins. Co. v. Warner, 80 Ill. 410, the premium fell due June 28. On the first of that month the company wrote to the assured that he would be entitled to a dividend on the twenty-eighth. The premium was not paid on the twenty-eighth and on the twenty-ninth he died. On July 2 the company wrote the assured that if he wished to continue the policy, to remit the amount of the premium by return mail. The balance of the premium, after deducting the dividend, was tendered a few days thereafter. The court held that there was no forfeiture, putting the decision upon the ground that the retention of the dividend, under the circumstances, was to be deemed a part payment of the premium and that this was a waiver of the forfeiture. Two of the judges who concurred in the decision did not concur in the ground upon which it was placed. They considered the letter as showing an election on the part of the company to continue the policy in force. Now it will be seen that in the former case there was an express agreement for an extension, by a duly authorized agent, and a tender before the extension expired. In the latter case the five judges who concurred in the opinion held virtually that the company received part of the premium, and thereby waived the forfeitWe have found no case going further than these in support of the position taken by appellants. ure. If the appellants in this appeal had paid the premium upon demand, they would have had a very different case; and if the authority of the agent to receive the payment had been shown, or the company had ratified this act, by appropriating the money or otherwise, we should think him clearly entitled to recover. But here was no payment, or tender of payment, nor any agreement, either before or after default, for an extension of time. Bridges, who was certainly agent for certain purposes, did make demand and did threaten to put the claim out for collection, and it would seem that he contemplated that the insurance should continue if the money was paid. But it nowhere appears that they ever indicated by any act that they desired to pay the premium and continue the insurance, or ever, in any manner, agreed to do so. The fact that they were ready and willing to pay on October 25, the date at which Bridges Cohen v. Continental Fire Insurance Company. threatened to put the note out for collection, we think can make no difference. There is no act of theirs before the oss occurred from which it can be inferred that they had any desire to continue the contract with the company; on the contrary, it is rather to be presumed that they were utterly indifferent whether the policy was continued in force or not. It is said in May on Insurance, § 362, and in Wait's Actions and Defenses, volume 4, page 57, that a demand, and even a suit brought, for an overdue premium is no waiver of a forfeiture. Both authors cite in support of this proposition the case of Edge v. Duke, 18 Law Jour., chap. 183. This case we have not been able to examine, the volume not being accessible to us. See Gorton v. Dodge Co. Ins. Co., supra; Roehner v. Knickerbocker Ins. Co., 63 N. Y. 160; Pill v. Berkshire Life Ins. Co., 100 Mass. 500; Baker v. Union Mut. Life Ins. Co., 43 N. Y. 83. We think therefore that appellant's position, that there was a waiver in this case, cannot be maintained, even if it had been shown that Bridges had authority to reinstate the contract after forfeiture. This agency however was by no means established. The courts, in order to prevent forfeitures in such cases, have frequently held slight circumstances sufficient to warrant them in finding such authority to exist. The evidence in this case is that Bridges was merely the agent to receive applications and to collect premiums, and that he had no authority to make contracts of insurance. There was no evidence that he had granted any previous extension. The circumstance that he made demand on the company's blanks may tend to show his authority for this purpose. But we cannot say the judge below erred if he held this insufficient. There are no findings of fact in the record, and we have to give every intendment to the judgment. So that unless it should be held that the judge below found against the weight of evidence upon the question of Bridges's agency, the judgment should not be reversed. We are therefore of opinion that there is no error in the judgment, and it is affirmed.. Judgment affirmed. City Bank of Sherman v. Weiss. CITY BANK OF SHERMAN V. WEISS. (61 Tex. 831.) Bank - indorsement for collection—claim by collector on proceeds. The defendant received a draft indorsed to his order "for collection on account of the City Bank of Houston." The prior indorsements showed that it had been remitted to that bank for collection on account of the plaintiff bank. The defendant collected the draft. The City Bank of Houston failed, indebted to the plaintiff and the defendant. Held, that the proceeds belonged to the plaintiff. A The opinion states the CTION for money had and received. Hal. W. Green and Brown & Gunter, for appellant. O'Brien & Johns, for appellee. 66 GAINES, A. J. On December 17, 1885, appellant remitted to the City Bank of Houston for collection a draft drawn by one Kent on the Texas Tram and Lumber Company for $222.58, having first indorsed it as follows: "For collection and credit for account of the City Bank of Sherman, C. C. Jones, Cashier." On the eighteenth day of the same month the City Bank of Houston indorsed the draft as follows and sent it to appellee: 'Pay V. Weiss or order for collection for account of City Bank of Houston. B. F. Weames, cashier." On the last-named day appellant remitted another draft for $201.60, drawn by the same drawer upon the same drawee, which also reached appellee through the same channel with like indorsements upon it. The City Bank of Houston failed. Appellee collected the money upon both drafts, upon the first before, and upon the second after he was apprised of the failure. The Houston Bank was indebted to both appellant and appellee, and appellee credited the proceeds of the collections to the account of the latter bank and refused to pay appellant. Appellant brought suit and the cause was submitted to a jury, who returned a verdict for appellee. The court rendered judgment accordingly and overruled appellant's motion for a new trial. The assignments of error relied upon in the brief, all relate to the action of the court in giving and refusing instructions. It is |